1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – Bavarian State Social Court, Judgment of 19 March 2014 – L 16 AS 383/11
The provision regarding repeated breaches of duty pursuant to Section 31 Paragraph 2 of the German Social Code, Book II (SGB II aF) (failure to report) is not unconstitutional.
Guiding principles (Juris):
The provisions of Section 31 Paragraphs 2 and 3 as amended by the Law on the Fixed Development of Basic Income Support for Job Seekers of July 20, 2006, Federal Law Gazette 1706, do not violate Article 1 in conjunction with Article 20 of the Basic Law.
The legislature is free to determine how it secures the minimum subsistence level; this can be done through a combination of monetary and in-kind benefits. The amount of in-kind benefits depends on the scope and duration of the sanction and cannot, in individual cases, be limited to the provision of food vouchers. Further in-kind benefits may be granted.
Source: sozialgerichtsbarkeit.de
1.2 – Bavarian State Social Court, decision of 20 May 2014 – L 11 AS 258/14 B ER
No suspensive effect of an objection against an administrative act replacing an integration agreement
Guiding Principles (Author):
The question is whether, before issuing an integration administrative act, a consensual solution within the meaning of case law (Federal Social Court, judgment of February 14, 2013 – B 14 AS 195/11 R) must first be sought if the applicant has previously repeatedly requested the job center to refrain from sending an integration agreement.
Source: sozialgerichtsbarkeit.de
1.3 – Schleswig-Holstein State Social Court, Judgment of 04.02.2009 – L 3 AS 119/11 – Appeal pending before the Federal Social Court under file number B 4 AS 20/14 R
Temporary community of need – Crediting of child benefit and maintenance advance – Additional needs for single parents in the case of shared custody – The care and upbringing of the daughter was suspended with the mother at 60%.
Guiding principles (author):
There is no entitlement to the additional needs allowance for single parents pursuant to Section 21 Paragraph 3 No. 1 SGB 2 if the parent claiming it only assumes responsibility for the care of the child to a monthly extent of approximately 40%.
The alternative method used by the 11th Senate of the Schleswig-Holstein Higher Social Court to allocate child benefit to the needs of children in temporary benefit units, based on the argument that the parent entitled to child benefit forwards the child benefit for the periods of the child's stay with the parent entitled to visitation rights upon request, is not to be followed.
Mere assumptions or presumptions regarding factual circumstances do not replace the necessary examination of whether the minor daughter's needs were actually met through the inflow of income, i.e., whether she had "readily available funds" for the duration of her stay.
Source: sozialgerichtsbarkeit.de
Note:
Schleswig-Holstein Higher Social Court (LSG) shares the same view, judgment of 17 January 2014 – L 3 AS 114/11 – appeal pending before the Federal Social Court (BSG) under file number B 14 AS 23/14.
1.4 – Berlin-Brandenburg State Social Court, Judgment of 26 February 2014 – L 18 AS 2232/11
Income assessment – Estimation § 3 para. 6 ALG II-V aF – Self-employed person – Loss offset within one income type
Guiding Principles (Author)
: Offsetting losses between different types of income is not possible under basic income support law (see Chemnitz Higher Social Court, judgment of November 24, 2011, – L 3 AS 190/08). Section 3 of the former version of the German Social Code, Book II (SGB II), provides no indication that losses from one business can be transferred to another.
It can be assumed that even under the provisions of the ALG II-V (Regulation on Unemployment Benefit II) applicable from January 1, 2008, offsetting losses within a single income category was not possible.
Pursuant to Section 3 Paragraph 6 of the former ALG II-V, the Jobcenter was entitled to estimate the applicant's income, as the applicant failed to provide proof of her actual income within two months of the end of the benefit period – a simple, undifferentiated income statement is insufficient.
It remains an open question whether the deadline specified in this provision (Section 3 Paragraph 6 of the former ALG II-V) constitutes a preclusive deadline (contrary to this view: Geiger, The Crediting of Income of the Self-Employed under Section 3 of the New ALG II-Verordnung [Version 1.1.2009], ZFSH/SGB 2009, 9, 15) and thus whether, after its expiry, no entitlement to (an increase in) benefits can arise if it is subsequently proven that the income was overestimated.
Source: sozialgerichtsbarkeit.de
Note:
Social Court Dresden holds a different view, judgment of 14.02.2014 – S 21 AS 6348/10 – Horizontal loss offsetting within the same type of income is permissible – § 5 ALG II-V.
1.5 – Berlin-Brandenburg State Social Court, decision of 11 March 2014 – L 19 AS 829/12 B – legally
binding appeal – rent arrears – costs of legal action by the landlord – costs of the landlord's legal dispute can be eligible rent arrears within the meaning of Section 22 Paragraph 8 of the German Social Code, Book II (SGB II).
Principle (Author):
Costs incurred by the landlord that do not arise from the tenancy agreement, but to which the landlord has (permissibly linked, after the expiry of the deadlines stipulated in Section 543 Paragraph 2 No. 3 of the German Civil Code (BGB) for averting termination due to rent arrears) made the continuation or renewal of the tenancy agreement, may be among the costs eligible for reimbursement under Section 22 Paragraph 8 of the German Social Code, Book II (SGB II) (Section 22 Paragraph 5 SGB II, old version) (cf. Federal Social Court (BSG), Judgment of June 17, 2010, B 14 AS 58/09 R).
Source: sozialgerichtsbarkeit.de
1.6 – Berlin-Brandenburg State Social Court, decision of 27 May 2014 – L 34 AS 1150/14 B ER – legally binding
exclusion from benefits pursuant to Section 7 Paragraph 1 Sentence 2 No. 2 SGB II – provisional provision of benefits pursuant to Section 40 Paragraph 2 No. 1 SGB II in conjunction with Section 328 Paragraph 1 Sentence 1 No. 1 SGB III – reduction of discretion to zero – Polish national is entitled to provisional benefits under the SGB II.
Principle (Author):
Insofar as Section 328 of the German Social Code, Book III (SGB III) places the provision of benefits at the discretion of the benefit provider, this discretion is reduced to zero. After it had already been highly controversial in the lower courts whether the exclusion from basic income support for jobseekers provided for in Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) for foreigners residing in Germany solely for the purpose of seeking employment is compatible with European law, the Federal Social Court – and thus the highest court of law – referred essential questions on this matter to the European Court of Justice for a ruling. The situation stipulated in Section 328 Paragraph 1 Sentence 1 No. 1 of the German Social Code, Book III (SGB III) has therefore arisen, in which, given the subsistence-securing nature of the benefits at issue, it would be a breach of duty not to provide them.
Source: sozialgerichtsbarkeit.de
1.7 – Berlin-Brandenburg State Social Court, Judgment of 07.05.2014 – L 18 AS 3167/12
Preliminary decision – inflow theory – compensation payments – delimitation of income/assets – The payment of the insurance benefit in the amount of EUR 10,125.00 for the loss of the truck is not to be considered as income of the self-employed transport operator.
Guiding principles (author):
Compensation payments that merely restore a previous financial situation (here: theft of a truck) must also be considered as assets under the "inflow theory" regardless of the time of inflow (following BVerwG, judgment of 18.02.1999, 5 C 14/98).
If the value of a claim for damages does not preclude the compensation payment from being considered income within the meaning of Section 11 Paragraph 1 of the German Social Code, Book II (SGB II), then Section 11 Paragraph 1 SGB II does not apply to compensation that, as in the present case, merely restores a previous financial situation (e.g., compensation for damage to or loss of an item). This is because simply replacing something someone already possessed does not constitute an inflow of funds, is not income, but rather, like the replaced item, is directly considered an asset. Otherwise, the replacement of something previously obtained would be impermissibly (again) classified as income (see Federal Administrative Court, loc. cit.). In contrast, all compensation payments that do not replace previously existing assets, but rather provide the entitled party with a benefit in money or money's worth for the first time, constitute income within the meaning of Section 11 Paragraph 1 SGB II.
Source: sozialgerichtsbarkeit.de
1.8 – State Social Court of Saxony-Anhalt, decision of 19.05.2014 – L 4 AS 169/14 B ER legally binding.
On the question of whether, in the case of benefit recipients aged at least 25 years, age alone is generally a sufficient reason within the meaning of Section 22 Paragraph 4 of the German Social Code, Book II (SGB II) to move out of the parents' home.
Guiding Principles (Author):
The relocation of the 30-year-old benefit recipient from her parents' home was necessary within the meaning of Section 22 Paragraph 5 Numbers 1 and 3 of the German Social Code, Book II (SGB II). The applicant had to live in her parents' house in a 9 m² room with a sloping roof under restricted conditions.
In the present case, the applicant occupied a small attic room at her parents' house and thus found living conditions that in no way corresponded to living space under typical conditions of the normal housing market (cf. already correctly, Social Court Dessau-Roßlau, Decision of June 22, 2012, S 11 AS 1272/12 ER). Moving out of the parents' house under the existing conditions is incomparable to moving between two typical apartments on the housing market.
Whether, with the introduction of this age limit (in Section 22 Paragraph 5 Sentence 1 of the German Social Code, Book II), the legislator merely stipulated that those under 25 require special reasons for moving out of their parents' home, or whether they simultaneously clarified that once this age limit is reached, no additional reasons for moving out of the parental home are required (as the Higher Social Court of Mecklenburg-Western Pomerania rightly held in its decision of July 22, 2008, L 10 B 203/08), can remain open here.
Source: sozialgerichtsbarkeit.de
1.9 – State Social Court of Saxony-Anhalt, decision of 22.05.2014 – L 2 AS 172/14 B ER – legally binding.
Benefits for the construction or installation of a septic tank on the property of the person in need of assistance are to be covered by the job center as a “loan”.
Principle (Author):
In preliminary legal proceedings, maintenance expenses are to be provided as a loan if it cannot be determined what the actual expenses for the applicant's accommodation will amount to, projected over the twelve months from the current month in which the unavoidable maintenance and repair expenses are incurred.
Expenses are unavoidable if they are particularly urgent and absolutely essential. Expenses are particularly urgent if they are necessary for the continued habitability of the property. It is unreasonable to expect the applicant to continue using the old, leaking septic tank.
The applicant's claim does not fail simply because the construction of a new septic tank would increase the value of their property. As a general rule, the assumption of costs that lead to an improvement in living standards and thus to an increase in the property's value is excluded. However, this does not mean that all measures resulting in an increase in value are excluded. In particular, an increase in value is permissible if the measure is necessary to ensure compliance with public law regulations. It follows that maintenance measures and value-enhancing improvements must be distinguished according to the objective of the measure. The decisive factor is whether it serves to preserve or restore the property to its existing condition or to create a new, improved state.
Source: sozialgerichtsbarkeit.de
1.10 – North Rhine-Westphalia State Social Court, decision of April 24, 2014 – L 7 AS 629/14 B ER – legally binding:
Assumption of energy debts by the Job Center within the framework of the balancing of interests, because the applicant's apartment has been without electricity since November 2013. Consequently, the applicant lacks the possibility of cooking, using light sources, washing, etc. in the apartment.
Guiding Principles (Author):
The assumption of the accumulated debts is objectively suitable, within the meaning of Section 22 Paragraph 8 of the German Social Code, Book II (SGB II), to restore the energy supply and, from a long-term perspective, to secure it permanently. The existing emergency situation can be resolved by the loan-based assumption of the benefits, so that the apartment would be habitable again.
The assumption of debts should not be rejected solely on the grounds of economically unreasonable (reprehensible) behavior on the part of the benefit recipient. Otherwise, the provision of Section 22 Paragraph 8 of the German Social Code, Book II (SGB II) would be rendered meaningless, because debts in the sense described therein are generally attributable to misconduct on the part of the benefit recipient (Federal Social Court, Judgment of June 17, 2010 – B 14 AS 58/09 R). In the present case, there is insufficient evidence of intentional benefit fraud that might render the assumption of the debts abusive.
Source: sozialgerichtsbarkeit.de
1.11 – North Rhine-Westphalia State Social Court, decision of 21.05.2014 – L 7 AS 652/14 B ER – legally binding.
Romanian nationals are to be provided with benefits under the SGB II within the framework of the balancing of interests.
Guiding Principles (Author)
The question of whether the applicants, as Romanian nationals, are excluded from benefits under the German Social Code, Book II (SGB II) pursuant to Section 7 Paragraph 1 No. 2 SGB II because, according to the current file, they are only permitted to reside in Germany for the purpose of seeking employment, or whether Section 7 Paragraph 1 Sentence 2 No. 2 SGB II takes precedence due to the direct applicability of Article 4 of Regulation (EC) No. 883/2004, is a controversial legal issue that has not yet been answered uniformly in case law and legal literature (cf., for example, against the applicability of Section 7 Paragraph 1 Sentence 2 No. 2 SGB II: Higher Social Court of Berlin-Brandenburg, decision of May 9, 2012 – L 19 AS 794/12 B ER, citing an expert opinion of the Research Service of the German Bundestag; Social Court of Berlin, decision of May 8, 2012 – S 91 AS). 8804/12 ER; Higher Social Court of North Rhine-Westphalia, decision of October 2, 2012 – L 19 AS 1393/12 B ER; Schreiber in NZS 2012, page 647 et seq.; for the applicability of Section 7 Paragraph 1 Sentence 2 No. 2 SGB II: Social Court of Berlin, decision of June 11, 2012 – S 205 AS 11266/12 ER and decision of the Social Court of Berlin of May 14, 2012 – S 124 AS 7164/12 ER; Higher Social Court of Berlin-Brandenburg, decision of June 21, 2012 – L 20 AS 1322/12 B ER and of August 2, 2012 – L 5 AS 1297/12 B ER; Higher Social Court of Baden-Württemberg, judgment of May 16, 2012 – L 3 AS 1477/11). The complexity of the legal regulations, taking into account the effects of European legal norms on national laws, can also be seen in the proceedings before the Federal Social Court (BSG) under file number B 4 AS 9/13 R, in which claims of Swedish nationals are in dispute. The Federal Social Court (BSG) has suspended proceedings B 4 AS 9/13 R pursuant to Article 267(1) and (3) of the Treaty on the Functioning of the European Union in order to obtain a preliminary ruling from the European Court of Justice (ECJ) on various questions, including whether the principle of equal treatment under Article 4 of Regulation (EC) No 883/2004, with the exception of the export exclusion under Article 70(4) of Regulation (EC) No 883/2004, also applies to the special non-contributory cash benefits within the meaning of Article 70(1) and (2) of Regulation (EC) No 883/2004 (BSG, ECJ referral of 12 December 2013 – B 4 AS 9/13 R).
In particular, applicants should not be referred to benefits for subsistence under the German Social Code, Book XII (SGB XII), to ensure their minimum subsistence level, due to the legal questions that also require clarification in this regard.
Source: socialcourtsability.de
1.12 – North Rhine-Westphalia State Social Court, decision of 02.06.2014 – L 2 AS 346/14 B ER – legally binding.
The mere assertion that operating expenses have been incurred is not sufficient to make them credible in preliminary legal protection proceedings.
Guiding principles (author):
A loss offset between different types of income within the meaning of Section 2 Paragraph 1 Sentence 1 of the Income Tax Act (EStG) is not possible (Section 5 Sentence 2 ALG II-V).
A ground for an injunction, i.e., a particular urgency of the decision, exists with regard to the provisional assumption of accommodation and heating costs, according to all specialized panels of the Higher Social Court of North Rhine-Westphalia, only in cases of an acute threat to the accommodation. There must be a threat of homelessness (see the decision of the adjudicating panel of July 8, 2013 – L 2 AS 1116/13 B). This is the case at the earliest upon service of the eviction notice (see also Higher Social Court of North Rhine-Westphalia, decision of September 12, 2013 – L 19 SF 267/13 ER).
The ground for an injunction ceases to exist if, despite a request from the court, the requested bank statements and accounting documents are not submitted in the proceedings.
The grounds for issuing a preliminary injunction to grant benefits under the German Social Code, Book II (SGB II), are not substantiated if the applicant's conduct in the court proceedings indicates that they are not interested in a prompt decision. In such cases, the special urgency required for preliminary legal protection is lacking (Higher Social Court of North Rhine-Westphalia, decision of May 3, 2007 – L 20 B 18/07 AS ER). There is no ground for an injunction if the allegedly needy person's conduct in the proceedings fails to demonstrate any urgency.
Source: sozialgerichtsbarkeit.de
1.13 – North Rhine-Westphalia State Social Court, decision of 28.05.2014 – L 19 AS 1860/13 B – legally binding:
Child benefit back payment of EUR 1,840.00 may only be counted as current income in the month of receipt and currently eliminates the need for assistance – A crediting as a one-off income with distribution over six months is unlawful.
Guiding Principles (Author):
Recurring income is income based on the same legal grounds and received regularly, while one-off income is comprised of a single payment. A one-off payment of what is otherwise considered recurring income – in addition to a subsequent payment – does not fundamentally change its classification (see also Federal Social Court judgment of May 7, 2009 – B 14 AS 4/08 R). Furthermore, according to Section 2 Paragraph 2 Sentence 1 of the Regulation on Unemployment Benefit II (Alg II-V), income is generally taken into account at the time it is received, i.e., at the time the higher income is earned (Federal Social Court judgment of May 16, 2012 – B 4 AS 154/11 R).
Unlike one-off payments, recurring payments are generally not subject to distribution, except in exceptional cases where they are received at intervals longer than monthly (§ 11 para. 2 SGB II; § 2 para. 2 AlgII V in the version valid until March 31, 2011). This is not an exceptional case, as the retroactive child benefit payment is a one-time event, whereas recurring child benefit payments are made monthly (§ 11 para. 1 BKGG).
Source: sozialgerichtsbarkeit.de
Note:
The same opinion was held by the Higher Social Court of North Rhine-Westphalia (LSG NRW) on 22 July 2013 – L 2 AS 738/13 B – regarding the retroactive payment of injury pensions.
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – Social Court Halle (Saale), decision of 30 May 2014 – S 17 AS 2325/14 ER
A Romanian national is entitled to a provisional grant of unemployment benefit II.
Guiding Principles (Author):
According to Section 40 Paragraph 2 No. 1 of the German Social Code, Book II (SGB II) in conjunction with Section 328 Paragraph 1 Sentence 1 No. 1 of the German Social Code, Book III (SGB III), the agency responsible for basic income support for jobseekers is permitted to grant basic income support provisionally if the compatibility of a provision of the SGB II, on which the decision regarding the application depends, with higher-ranking law is the subject of proceedings before the Federal Constitutional Court or the Court of Justice of the European Communities. This is the case with regard to Section 7 Paragraph 1 Sentence 2 No. 2 of the SGB II.
According to Section 328 Paragraph 1 Sentence 1 of the German Social Code, Book III (SGB III), the benefit provider is granted discretion in deciding on the provisional granting of benefits, which it must exercise in accordance with the purpose of the authorization and within the legal limits of discretion (Section 39 Paragraph 1 Sentence 1 of the German Social Code, Book I (SGB I)).
The job center failed to exercise this discretion in its rejection decision, and therefore the court must order the job center to grant benefits provisionally within the framework of the preliminary injunction proceedings. Such a decision is the only possible one because the applicant's fundamental right to a dignified minimum standard of living, derived from Article 1 Paragraph 1 of the Basic Law in conjunction with the social state principle of Article 20 Paragraph 1 of the Basic Law, cannot be guaranteed otherwise. Article 1 Paragraph 1 of the Basic Law establishes this right as a human right (see Federal Constitutional Court, Judgment of July 18, 2012 – 1 BvL 10/10, 1 BvL 2/11).
Source: sozialgerichtsbarkeit.de
Note:
LSG BB, decision of 27.05.2014 – L 34 AS 1150/14 B ER, shares the same opinion.
2.2 – Social Court Detmold, Judgment of 17 April 2014 – S 18 AS 2103/12
The job center must pay benefit recipients supplementary benefits under the German Social Code, Book II (SGB II), because the recipient's share of co-ownership in the house he and his mother live in is not considered realizable assets within the meaning of Section 12 Paragraph 1 of the SGB II – exceeding the 90 m² limit by 4.95 m² – large hallway or entrance hall area of the houses in rural areas
Guiding Principles (Author)
If the residence of a co-owner is limited by the use of the other co-owners according to their respective shares to a real part of the property or building corresponding to his ideal share of co-ownership, the assessment of whether the jointly owned house property is appropriate can be based on the part of the property used as a residence on the basis of the share of co-ownership (see LSG NRW, judgment of 30.06.2011, L 7 AS 79/08).
The remaining undeveloped plots of land, totaling 2,258 m², also constitute non-marketable assets.
An asset is considered practically or economically unusable if it cannot be converted into cash at a reasonable price within a foreseeable timeframe and thus used to cover living expenses. Usability exists only if its sale would generate income for the individual, enabling them to cover their living expenses, even if only temporarily. The individual in need of assistance cannot sell the undeveloped portion of the property on their own, as this would first require subdividing the land. Subdividing the property would also require the mother's consent.
Source: sozialgerichtsbarkeit.de
2.3 – Social Court Stade, Judgment of 24 April 2014 – S 18 AS 997/12
If the benefit recipient declared that she was not prepared to pursue the sale of the property, a loan for benefits could therefore rightly be refused (see LSG Lower Saxony-Bremen, decision of 20.08.2009 – L 7 AS 852/09 B ER -).
Guiding Principles (Author):
The house and property owned and occupied by the recipient must be considered as realizable assets. The conditions for disregarding it under Section 12 Paragraph 3 Number 4 of the German Social Code, Book II (SGB II) are not met, as neither the house nor the property is considered reasonable (living space of the home: 106.48 sq m; the property is 930 sq m).
No exceptional circumstances or needs are apparent that would justify a deviation from the standard limit in this case. The applicant is single and does not have an increased need for housing due to health reasons. A deviation from the usual reasonable housing limit is also not conceivable based on the applicant's age and imminent retirement, as she only turned 59 in February 2014.
Source: sozialgerichtsbarkeit.de
2.4 – Social Court Lüneburg, Decision of May 21, 2014 – S 27 AS 156/14 ER
Principle (Author):
Austrian citizens are entitled to ALG II (unemployment benefit II) within the framework of the balancing of interests.
Source: www.harald-thome.de (pdf)
Note:
LSG BB held a different view, decision of 16.08.2013 – exclusion of benefits for Austrian nationals pursuant to § 7 para. 1 sentence 2 no. 2 SGB II.
2.5 – SG Bremen, Court Order, Decision of 02.06.2014 – S 27 AS 160/12
Guiding Principles (Author)
: If the administrative guidelines for initial housing furnishings provide only for the granting of lump sums or partial lump sums in cash for benefits under Section 23 Paragraph 3 of the German Social Code, Book II (SGB II) in its old version (a. F.) or under Section 24 Paragraph 3 Sentence 1 Numbers 1 and 2 of the SGB II in its new version (n. F.), these lump sums or partial lump sums are subject to judicial plausibility review with regard to whether suitable information on the necessary expenses and verifiable empirical data were taken into account in their calculation (Section 24 Paragraph 3 Sentence 6 SGB II n. F.; see also the judgment of the Federal Social Court (BSG) of August 20, 2009, file number B 14 AS 45/08 R).
Source: www.kanzleibeier.eu
2.6 – Social Court Braunschweig, Judgment of April 9, 2014, S 49 AS 1851/12:
On the assumption of overlapping costs in the case of double rent payments when the applicant flees to a women's shelter.
Key principles (author):
Double rent payments can be included in housing procurement costs if they are unavoidable (Lower Saxony-Bremen Higher Social Court, Decision of October 31, 2012, Case No.: L 11 AS 800/12 B ER). However, double rent payments can only be covered if the beneficiary has done everything possible and reasonable to keep the double rent payments as low as possible.
Women admitted to a women's shelter are regularly in an exceptional psychological and physical situation, which means that, in this specific situation, lower demands can be placed on these women regarding "managing their own affairs" than on a typical tenant during a normal move. Furthermore, a stay in a women's shelter is regularly associated with specific constraints. For example, the applicants were unable to inform their relatives of their whereabouts in order to avoid further threats from their partner. Assistance with moving by these third parties was therefore impossible. Other special circumstances included the absence from their hometown due to their stay in the women's shelter and the imminent threat preventing the applicants' return. This emergency and coercive situation was taken into account in their favor when considering the extent to which the applicants were able to take care of their previously occupied apartment during this time.
Source: www.rechtsprechung.niedersachsen.de
3. Decisions of the State Social Courts on Social Assistance (SGB X II)
3.1 – State Social Court of North Rhine-Westphalia, Judgment of 05.05.2014 – L 20 SO 58/13 – The appeal on points of law is admitted.
The living space of the house occupied by the recipient of benefits is, in itself, disproportionately large considering the two residents. However, the property of the benefit recipient (leasehold) is nevertheless protected from the obligation to contribute to the costs of providing benefits under Section 90 Paragraph 2 Number 8 of the German Social Code, Book XII (SGB XII) – benefits are to be provided as a subsidy.
Guiding principles (author):
It can be assumed that the slight exceedance of the appropriate living space ("119 m² actual living space" – appropriate living space 90 m²) is irrelevant due to the other factors of the property (living space, market value and structural features) which fall under the concept of appropriateness in Section 90 Paragraph 2 No. 8 SGB XII.
While the living space of the house is inappropriately large in relation to the number of residents, the exceedance of the applicable limit of what is reasonable is to be tolerated, as it is less than a third above the limit for a single-family home occupied by one or two people, and all other criteria for reasonableness under social welfare law are met.
Finally, the fact that the inheritance right consists of two plots of land does not preclude its appropriateness, as LB already utilizes the separate plot in the garage complex appropriately through rental. The size of the property—to be assessed according to the circumstances of the individual case—is also appropriate under social welfare law (485 m², plus 21 m² in the garage complex). According to the Federal Social Court's (BSG) jurisprudence, the 500 m² limit applied in practice for a detached house or for rural areas is merely a guideline; it can be exceeded if the size of a house plot remains within the bounds of local conditions (see BSG, judgment of May 19, 2009 – B 8 SO 7/08 R). This is the case here, as LB's property belongs to an L-shaped development of similar houses built on comparably sized plots. Additionally, it should be taken into account that the district is not part of the inner city, but rather has a more rural character. In a rural area, the Federal Social Court (BSG) even considered a plot of land of 800 m² to be appropriate in the specific case it decided (see BSG, judgment of December 12, 2013 – B 14 AS 90/12 R).
Source: sozialgerichtsbarkeit.de
Court's note:
To ensure the practical application of the typical living situation considered in Section 90 Paragraph 2 Number 8 of the German Social Code, Book XII (SGB XII), it is deemed necessary to allow, for single-family homes occupied by one or two people, an exceedance of the reasonable living space of 90 square meters by up to one-third, provided the house is otherwise appropriate and does not experience any significant increase in value. In such a case, the Senate considers the interests of the general public, which funds social assistance through taxes, to be sufficiently protected by the provision regarding cost reimbursement by heirs in Section 102 of the SGB XII.
4. Decisions of the social courts on social assistance (SGB X II)
4.1 – SG Stuttgart, judgment of 30 June 2013 – file no. S 25 SO 2841/12
Rental agreement between relatives receiving basic income support – social welfare provider must also pay rent for the parents of a benefit recipient
Principle (SoSi plus 5/2014):
The social welfare provider may also be obliged to cover the rent of a recipient of assistance if the recipient's parents are the landlords and live in a shared household with the recipient.
Source: www.bund-verlag.de
Note 1: The
Social Court of Gelsenkirchen reached the same conclusion in its judgment of February 10, 2014 – S 2 SO 251/12, unpublished – ruling that the social welfare agency must cover the accommodation costs of the mentally disabled son living with his parents (principle by attorney Markus Klinder); similarly, the Higher Social Court of Berlin-Brandenburg (LSG BB) reached a similar conclusion in its judgment of February 20, 2014 – L 15 SO 23/13 – ruling that the social welfare agency must cover the accommodation costs of the disabled brother living with his sister under guardianship, because according to the jurisprudence of the Federal Social Court, the primary factor is the existence of a legally valid tenancy agreement, which is the case here.
Note 2:
See the commentary in: LSG NRW, Judgment of February 10, 2014 – L 20 SO 401/13 (para. 68) – Appeal pending before the BSG – B 8 SO 10/14 R: While her parents or father had adequate, their income was by no means lavish; the legal assessment in Section 43 Paragraph 3 Sentence 1 of the German Social Code, Book XII (SGB XII) indicates that, given such financial circumstances, when caring for a fully incapacitated adult child in the parental home, it appears justified to allocate the child's accommodation and heating costs to the social assistance costs to be borne by the general public through appropriate civil law arrangements. Affected parents and children should therefore generally not be acting abusively if they seek to avoid financial hardship for their parents (who are already significantly burdened by the caregiving responsibilities) through such arrangements.
Principles of the decision LSG NRW, judgment of 10.02.2014 – L 20 SO 401/13
(author):
An adult child in need of assistance who lives in a shared household with his or her parents is not entitled to benefits for accommodation and heating if, due to a lack of intent to be bound, no valid tenancy agreement has been concluded (§§ 117 para. 1, 133 BGB).
However, for such contractual arrangements to be effective, the provisions of guardianship law and other civil law regulations would have had to be observed (see, for example, Social Court Duisburg, judgment of 02.12.2013 – S 48 SO 128/12).
5. Telepolis: Special laws for the poor – Unemployed groups announce campaign against planned further tightening of regulations for Hartz IV recipients
German society constantly emphasizes how exemplary its stance against neo-Nazis and the far right is, and the Bild newspaper naturally doesn't want to be left behind. However, it often simply adopts slogans from far-right groups that would have caused widespread outrage had they appeared in a publication on the far right.
Continue reading: www.heise.de
Author of the legal news ticker: Willi 2 from Tacheles – alias Detlef Brock
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
